An alternative, favored by Leonard and popular in the access community, would be to create a so-called “drop dead” date. Nearly all documents that were, say, twenty-five, thirty, or forty years old would be automatically declassified. Aftergood suggests that different agencies might have different drop dates to reflect the kinds of classified information they deal in. But no one expects the order to endorse a drop dead date.
Obama’s memo, after floating the idea of a National Declassification Center, goes on to mention restoring what the president describes as “the presumption against classification.” In 2003, George W. Bush removed instructions issued in Clinton’s executive order eight years before saying that if a classifier had “significant doubt” about whether a document should be classified, it should remain unclassified.
It’s not clear that this instruction made a difference. “I don’t think we saw any change whatsoever,” says Leonard. “Those are words without meaning.”
Others basically agree.
“I think certainly the presumption should be reversed, but I don’t think that’s going to make any difference,” says Fuchs. “It’s important rhetoric but in order to actually reduce classification, its necessary for there to be incentive and oversight built into the actual classification system, that will discourage unnecessary classification and will impose consequences such as retraining or improved training when unnecessary classification is identified.”
Still, slipping something akin to Clinton’s language back into the executive order has wide support, in part because it might be a way to signal the revisions’ intent.
“It speaks to tone, and tone is very important,” says Bosanko.
There’s another Bush era change to the executive order that went unmentioned in Obama’s May memo. In 1999, the Director of Central Intelligence argued that his—and therefore his agency’s—classification decisions were exempted from review by the ISCAP process. While the Justice Department’s Office of Legal Counsel flatly disagreed with his legal argument, four years later the CIA was able to obtain a carve out from Bush allowing the intelligence chief to unilaterally overrule ISCAP. Since then, there have been two reported cases where the Director of National Intelligence has overruled a decision requiring release.
The potential that the intelligence community’s special powers at ISCAP could be left intact troubles Bill Leonard, who in his capacity as ISOO director served as ISCAP’s executive secretary at the time the change was made.
“It will be interesting to see if that’s rolled back. If even that’s not rolled back,” says Leonard, “then we’ll know that we truly are just tinkering around the edges.”
There’s good reason that so many questions about the classification order remain unanswered: it is being discussed behind closed doors. The drafting process has received virtually no media coverage, perhaps because the principals are none too eager to talk about recommendations that they are privately producing for the president. (The National Security Council, which is leading the discussion, did not respond to multiple requests from CJR for comment.)
“They are meeting weekly as an interagency group, and meeting more frequently within the agencies to sort out their own wants and needs,” says Steven Aftergood. “They are not meeting weekly with people outside the government, who have different expectations for this process. And it won’t be surprising if the final product reflects that. I mean, you and I aren’t around the table.”
General Jones’s staff did ask the Public Interest Declassification Board to run a public input process, which included a forum at the National Archives, attended by government officials and a wide range of outside access advocates and classification stakeholders. The PIDB also worked with the White House’s Office of Science and Technology Policy to set up an online public forum allowing anyone to offer outside suggestions, no matter how far they were from Washington.
Many people contributed—historians, former government employees, and experts including Aftergood and Leonard. The PIDB summarized their recommendations and sent them along to General Jones. The accompanying letter offered a meeting between the PIDB and the interagency drafting group, and suggested that some form of the recommendations be released before they were finalized to allow further public comment. There has been no response on either point.
Even so, it’s indisputable that the online forum offered an unprecedented method for the access community and everyday citizens to offer suggestions and concerns about classification policy.
“We think it worked out quite well,” says PIDB acting chair Martin Faga, before acknowledging that it was “hard to say” how seriously the public input would be taken.
It would have been easy for a casual commenter, one unfamiliar with the structure of the review, to get the impression that they were offering comment directly to the decision makers, rather than to a board that would summarize and pass along their contributions.